IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

REV. MARTIN FRY : CIVIL ACTION

:

v. :

:

MIDDLETOWN TOWNSHIP, et al. : NO. 02-2780

ORDER AND OPINION

JACOB P. HART DATE: March 12, 2003

UNITED STATES MAGISTRATE JUDGE

Defendants in this case have moved to preclude the introduction of evidence that they

denied plaintiff, the Reverend Martin Fry, access to his heart medication. They maintain that “in

essence, this case involves allegations of the use of unreasonable and excessive force by the

Defendant police officers upon the Plaintiff during his lawful arrest.” Memorandum in Support

of Motion at 1. Failure to permit Fry access to his medication, they argue, is irrelevant to this

claim. They also argue that, to the extend that it is relevant, it is more prejudicial than probative.

I will deny this motion. In deciding Defendants’ motion for summary judgment, I ruled

that Plaintiffs could not assert at trial a claim against Middletown Township under the statecreated danger theory, based on Defendants’ failure to permit Fry access to his medication, since

they had not pointed to a municipal custom or policy which led to the violation of Fry’s rights in

this regard.

Nevertheless, I will permit Plaintiffs to make such an argument at trial against the

individual defendants. The state-created danger theory was recognized in DeShaney v.

Winnebago Cty. Soc. Services Department, where the United States Supreme Court wrote:

The rationale for this principle is simple enough: when the State by the affirmative

exercise of its power so restrains an individual’s liberty that it renders him unable

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to care for himself, and at the same time fails to provide for his basic human needs

– e.g., food, clothing, shelter, medical care, and reasonable safety – it transgresses

the substantive limits on state action set by the Eighth Amendment and the Due

Process Clause.

489 U.S. 189, 200 (1988). (Emphasis supplied).

In Kneipp v. Tedder, the Court of Appeals for the Third Circuit decided that the statecreated danger theory could provide the basis for a § 1983 action, where:

(1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor

acted in willful disregard for the safety of the plaintiff; (3) there existed some

relationship between the state and the plaintiff; (4) the state actors used their

authority to create an opportunity that otherwise would not have existed for the

third party’s crime to occur.

95 F.3d 1199, 1208 (3d Cir. 1996).

Interestingly, while Plaintiffs invoked DeShaney and Kneipp in their response to

Defendants’ motion for summary judgment, they did not invoke it here. Yet, the facts they have

alleged surrounding Fry’s medical treatment clearly fit the state-created danger cause of action 

much more neatly than they fit a claim of excessive force. While I could conceivably have fit the

facts regarding medical treatment into an excessive force theory, therefore, I will instead treat

them as setting forth a cause of action for state-created danger.

Importantly, Defendants will not be prejudiced by this. They were aware no later than

Fry’s October 22, 2002, deposition that he alleged his medicine was kept from him. Discovery in

this case did not close until February 3, 2003. Therefore, Defendants knew of the substance of

this claim in plenty of time to explore it in discovery.

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Since Fry will be permitted to argue at trial that the individual defendants violated his

civil rights by keeping him from his heart medication, evidence in this regard is obviously

relevant. For this reason, I will deny Defendants’ motion in limine.

O R D E R

AND NOW, this day of March, 2003, upon consideration of Defendants’

Motion in Limine Seeking the Preclude Introduction of Evidence That The Defendants denied

Plaintiff Medication, filed as document No. 25 in this case, and Plaintiffs’ response thereto, it is

hereby ORDERED that the motion is DENIED.

BY THE COURT:

___________________________________

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE

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